SHP - 58



Canadian National Railway Company

(the "Company")



(the "Union")



SOLE ARBITRATOR: J. F. W. Weatherill




J.W. Asprey



J.R. McLeod



A hearing in this matter was held in Montreal on February 15, 1979



The joint statement of issue in this matter is as follows:


On 21 March 1978 the Company posted a notice at the Sarnia Repair Track informing the work force that the Repair Track would be working on the Statutory Holiday, 24 March.

Carmen G. Robinson, G. Narrower, J. Darrech, W. McCann and Apprentice E.S. Bishop were regularly assigned to the Sarnia Repair Track but did not report for work on 24 March. Each of these employees subsequently submitted a claims for holiday pay as provided in Rule 46.4(b) of Wage Agreement 16.

The Company declined the claims on the grounds that the claimants did not qualify for holiday pay because they were not available for duty in accordance with Rule 46.4(b).

The Brotherhood contends that the grievors do qualify because they were not given four (4) days notice that they would be required to work on the holiday in accordance with Rule 46.4(b).

The Company maintains that a notice of less than four (4) days was given because of unforeseen exigencies of the service as provided for in rule 46.4(b). The Brotherhood does not agree that there were unforeseen exigencies of the service.

* * * * *

Rule 46 of the collective agreement deals generally with the matter of General holidays. The day in question was Good Friday, a general holiday under the agreement. The matter of qualification for holiday pay is set out in Rule 46.4, which is as follows:

RULE 46.4

In order to qualify for pay on any one of the holidays specified in Rule 46.2 an employee (a) must have been in the service of the Company and available for duty for at least 30 calendar days. This Rule 46.4(a) does not apply to an employee who is required to work on the holiday:


(b) must be available for duty on such holiday, if it occurs on one of his work days, excluding vacation days, except that this does not apply in respect of an employee who is laid off or suffering from a bona fide injury, or who is hospitalized on the holiday, or who is in receipt of or who subsequently qualified for weekly sickness benefits because of illness on such holiday; when an employee is required to work on such general holiday he shall be given an advance notice of four calendar days, except for unforeseen exigencies of the service, in which case he will be notified not later than prior to the completion of his shift or tour of duty immediately preceding such holiday that his services will be required; and

(c) must have rendered compensated service on at least 12 of the 30 calendar days immediately preceding the general holiday. This Rule 46.4(c) does not apply to an employee who is required to work on the holiday.

No issue arises in this case as to Rule 46.4 (a) or (c). The grievors would, generally, have qualified for holiday pay on the day in question. They would, in general, have been entitled to four days' notice of any requirement to work on the holiday. Such notice was not given, and the issue in this case, as the joint statement makes clear, is whether there were "unforeseen exigencies of the service" which would relieve the Company of the necessity to provide four days' notice. If there were, the grievance must fail. If there were not, it must succeed.

The "exigency" said to have arisen was an increase in the number of "bad order" cars needing to be repaired in order to maintain the Company's rolling stock and to meet the forecasted car requirements. The tolerable "bad order" count is established on a weekly basis, usually on a Thursday. A regional target of "bad order" cars is then set for, each car classification. That was done, it would seem, on Thursday, March 16. On Friday, March 18, the "bad order" count for the region involved (in which Sarnia is one of many work locations) was 1,290 cars (apparently a total of all classifications). On Monday, March 20, the count had risen to 1,393 "bad order" cars. These figures were in excess of the "target" which the Company considered appropriate for efficient operation. It was judged, nevertheless, that it would not be necessary to work the Sarnia Repair Track over the forthcoming holiday, although the increased "bad order" count on the Monday caused the Company "to closely monitor the situation".

On Tuesday, March 21, the "bad order" count had increased to 1,416 cars. In view of the fact that the loss of production on the holiday would no doubt cause the "bad order" count to increase even more, the early prognosis was changed, and the decision made to work the Repair Track at Sarnia on the holiday. This action was considered necessary in order to maintain customer service. While notice of work on the holiday was then given promptly, it was then too late to give the notice called for by the collective agreement, unless it can be said that in the circumstances described there was an "unforeseen exigency of the service"

The Company, of course, is not as a rule anxious to require (as far as work in its shops is concerned), that work be performed on a holiday, as premium rates, in addition to holiday pay, must be paid. It is understandable, then, that the Company might seek, in its planning and scheduling, to avoid holiday work, or to put off any decision thereon until the last minute. In the instant case, having decided that holiday work would not be required, it maintained that decision (in the face of a "bad order" situation which was in excess of the target and was increasing), even beyond the last minute.

It may be, as the Union acknowledges, that there was an "exigency" in the sense that the provision of adequate service required that extra work be done in order to reduce the number of "bad order" cars. There is, it may be noted, no evidence of any particular situation where demands for service could not be met (the work to be done was for the purpose of furnishing the total rolling stock forecast to be necessary), and there was no "emergency" in the sense of any sudden unanticipated incident which would require extra work. In any event, assuming that it was an "exigency of the service" that the number of "bad order" cars be reduced, I do not consider, in the circumstances, that this was an "unforeseen" exigency of the sort which would relieve the Company of the need to give four days' notice of holiday work. In fact, the Company did, according to its own brief, consider whether or not holiday work would be required, a week before the holiday occurred. In the days that followed, the number of "bad order"' cars, already in excess of the target, increased. Clearly, the Company hoped that that trend would be reversed and, that holiday work would not be necessary. Eventually, however, it became clear that it would be necessary. The unhoped for exigency did arise. It cannot, however, properly be said to have been unforeseen.

For the foregoing reasons, therefore, it is my conclusion that the grievors were not given the notice to which they were entitled under Rule 46.4(b), and that, in the circumstances, the Company was not relieved from the requirement of giving that notice. The grievors were, therefore entitled to holiday pay, and the grievance is allowed.

DATED AT TORONTO, this 27th day of February, 1979.

(signed) J.F.W. Weatherill